CRIMINAL PROCEDURE

I. THE EXCLUSIONARY RULE

A. RULE: A judicially created remedy that bars government use in criminal trials of
information or material secured as a result of a violation of a federal statute or the
Defendant's Fourth, Fifth, or Sixth Amendment rights. The main objective is to deter
misconduct by law enforcement.
B. SCOPE: If the rule applies, illegally obtained evidence is an all evidence or
information obtained or derived from exploitation of the evidence is barred (“fruit of the
poisonous tree doctrine.”).
C. CONTEXTS IN WHICH RULE DOES NOT APPLY:
1. Civil proceedings
2. Grand jury proceedings
3. Parole revocation proceedings
D. WHEN EXCLUSION DOES NOT OCCUR:
1. When state procedural limits on arrest or search are violated
2. When police, acting with a search warrant, violate the Fourth Amendment's
“knock and announce” rule.
3. When there exists an “independent source”: police can show that the illegally
obtained evidence could have been obtained from a source independent of the
improper police action.
4. When the facts suggest a break in the causal chain between the illegality and the
evidence secured, especially by an intervening act of free will by D.
5. When police would have "inevitably discovered" the evidence.
6. When police conduct an illegal search or illegally obtain a confession, police can
use the information to impeach the defendant in cross examination but not
witnesses
7. When police act in "good faith" based on:
a. A decision or law that is later invalidated by a court;
b. When the police have a defective search warrant;
c. When the arrest is based on negligent clerical error
However, the good faith exception is not applicable when:
a. If the affidavit supporting the arrest lacks probable cause cause such that
no police officer would reasonably rely on it.
b. When the search warrant is defective on its face
c. If the officer lied or purposely misled the magistrate and the fact was
material to the finding of probable cause.
d. The magistrate wholly abandoned his judicial role.
E. ENFORCING THE EXCLUSIONARY RULE
1. Applicability of the rule is decided by a judge, outside hearing of jury.
2. D has a right to testify at a suppression hearing without his testimony being
admitted against him at trial on the issue of guilt.
3. Government bears the burden of establishing the admissibility of evidence, by a
preponderance of the evidence.
F. NEED FOR GOVERNMENT ACTION
1. For the exclusionary rule to apply, the evidence or information must be obtained
as a result of government conduct.
2. Categories:
a. Publicly paid officers or an off-duty officer
 b. Private citizens acting at the direction of the government
c. Privately paid police that are deputized by the governmental
II. FOURTH AMENDMENT: SEIZURES
A. RULE: Individuals have a right to be free of "unreasonable...seizures." Governmental
detentions of persons, including stops and arrests, are "seizures" within the scope of the
Fourth Amendment and must be reasonable.
B. WHEN A SEIZURE OCCURS
1. A seizure occurs when a reasonable person would not feel free to leave. There
are two bases for a seizure:
a. Physical application of force by the government agent and
b. Submission to the officer's show of authority.
2. Police a free to conduct consensual encounters without any belief of criminal
activity whatsoever.
C. ARRESTS
1. When Arrest Occurs: An arrest occurs when the police take a person into
custody against their will to prosecute or interrogate.
2. Probable Cause: An arrest must be made on the basis of probable cause. There
must be trustworthy facts or knowledge sufficient for a reasonable person to
believe that the suspect has committed or is committing a crime.
a. Hearsay is permissible.
3. Warrantless Arrest: A warrant generally is not required before arresting a
person in a public place, no matter how minor the alleged offense.
a. If it is a misdemeanor, the offense must occur in the officer's presence.
4. In-Home Arrest: The police must have an arrest warrant to arrest a D in his
home.
a. Exceptions:
i. Hot Pursuit of a Felon
ii. Evanescent Evidence (evidence that can be destroyed quickly)
iii. Consent (voluntary)
b. Home of Third Party: Police cannot search for the subject of an arrest
warrant in the home of a third party. Police must either:
i. Obtain a search warrant for the subject, specifying his location in
the third party's home;
ii. Secure consent to search to search the premises from the third
party homeowner
iii. Exigency for entry.
D. INVESTIGATIVE DETENTIONS ("TERRY STOPS")
1. RULE: The police may detain a person for investigative purposes if they have a
reasonable articulable suspicion of criminal activity or involvement in a
completed crime supported by articulable facts. This is a "stop." Don't need
probable cause for a stop because it is less intrusive than a seizure.
2. SCOPE:
a. The stop must be no longer than necessary to conduct a limited
investigation to verify or dispel the suspicion.
b. The police may ask persons to identify themselves by name.
c. The police may arrest suspect for failure to comply.
d. The stop may turn into an arrest if probable cause develops, either
concerning the basis for the stop or some other basis arises during the
stop.
 e. The police can "frisk" for weapons if they have reasonable suspicion that
the suspected is armed and dangerous.
E. AUTOMOBILE STOPS
1. RULE: Stopping a car for a traffic violation is a seizure for Fourth Amendment
purposes. Police must have reasonable suspicion or probable cause to support a
seizure. Both the driver and occupants are seized.
2. SCOPE: For safety reasons, police can order both the driver and any passengers
out of the vehicle.
3. Pretextual stops: If police have probable cause or reasonable suspicion to
justify the auto stop, they can do so even if they are actually motivated by a
desire to investigate some other offense (as to which they lack any reasonable
suspicion or probable cause). The subjective motivation of the officer is
irrelevant.
F. STATION HOUSE DETENTIONS
1. RULE: Police must have probable cause of an offense to bring a suspect to the
station for questioning or fingerprinting.
G. DEADLY FORCE
1. RULE: There is a Fourth Amendment seizure when police use deadly force
unless it is reasonable under the circumstances.
III. FOURTH AMENDMENT: SEARCHES AND SEIZURES OF PERSON OR ITEMS
A. RULE: Individuals have a right "to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures." Warrants must be supported by
"probably cause" and must describe with particularity "the place to be searched, and the
persons or things to be seized."
B. GOVERNMENT CONDUCT?---No government agent, no 4th Amendment claim
C. DID DEFENDANT HAVE A REASONABLE EXPECTATION OF PRIVACY
(REP)?
1. RULE: To have a Fourth Amendment right, a person must have his own
reasonable expectation of privacy with respect to the place to be searched or the
item(s) to be seized. The right is personal to the defendant and is conceived in
terms of standing to challenge the search. REP does not exist merely because the
defendant will be harmed by government use of the evidence discovered.
a. The determination is to be made on the totality of the circumstances. The
court considers factors such as the ownership of the place searched and
the location of the item seized.
2. Yes REP
a. D owns or had a right to possess the place searched.
b. The place searched was D's home.
c. D was an overnight guest.
d. Police squeezed D's luggage.
e. When police scan a home with a device not available to the public.
3. NO REP
a. A person is in a home for a business purpose.
b. When you hold something out to the public.
c. Paint on the outside of car.
d. Account records.
e. Airspace.
f. Garbage.
g. Voice or Face
 h. Open Fields - land beyond the home and curtilage
i. Odors.
j. Dog sniff from exterior of a vehicle.
4. REP Unclear
a. Social guests who are legitimately on the premises.
b. Owner of the item.
c. Non-car owner passengers
D. DID POLICE HAVE A SEARCH WARRANT?
1. Was warrant approved by a neutral and detached magistrate?
a. Examples of Test Not being Satisfied:
i. Person serving as a Magistrate is also a State Attorney or State
Prosecutor.
ii. Person is paid to issue warrants (financial incentive).
iii. Magistrate participates in the search.
b. When is Test Satisfied?
i. When performed by a non-lawyer.
2. Did Warrant Particularly Describe the Place to be Searched and the Items to
be Seized?
3. Was Warrant Supported by Probable Cause?
a. Test: Based on totality of the circumstances, whether there is a fair
probability that contraband or evidence will be found in a particular place.
b. Use of Informants: A warrant can be based on an informant's tip even if
the informer is anonymous.
i. The affidavit may be sufficient even though either the reliability or
credibility of the informer or her basis for knowledge is not
established.
ii. The informer's identity generally need not be revealed.
4. If the Warrant is Invalid, Did the Officer's "Good Faith" Reliance on the
Warrant Redeem the Search?
5. Was the Warrant Improperly Executed?
a. Violation examples: police search in a place where item specified could
not be found. Or undue delay in executing search.
b. Not a violation: police violate the "knock and announce" rule.
E. DID THE POLICE LACK A SEARCH WARRANT?
1. Exceptions to the Warrant Requirement
a. Search Incident to a Lawful Arrest (any violation based upon
probable cause will serve)
i. Lawful arrest based on probable cause
ii. The arrest has to be anchored in the substantive law
iii. Has to be an actual arrest. Traffic ticket will not suffice.
iv. The search has to be contemporaneous with the arrest.
b. Search Incident to Arrest of Persons
i. Physical scope of the search is limited to the person and the
person's wingspan.
c. Search Incident of Auto Interiors
i. Physical scope is limited to the passenger compartment and any
containers therein. Not the trunk!
ii. Police can search interior only if:
(1) The arrestee is unsecured and may still gain access to the
 car; or
(2) The police reasonably believe that evidence relating to the
arrest may be found in the vehicle.
d. Automobile Exception
i. Police have to believe the car contains contraband or evidence of
crime.
ii. Police can search the entire car, including the trunk.
iii. Police can search any container in the car, regardless of who owns
it
iv. If police only have probable cause for a specific item/container,
they can only search for the item/container.
e. Plain View Exception
i. Police are legitimately on the premises;
ii. Police discover evidence, fruit, instrumentality of crime or
contraband;
iii. The material has to be in plain view;
iv. The incriminating nature of the material has to be immediately
apparent.
f. Consent
i. Actual Authority: Party has actual dominion or control over
premises or object (even if jointly held).
ii. Apparent Authority: Consent is valid if police make a reasonable
factual mistake as to consenting party's authority.
iii. Special Case of Dissenting Party: Consent is invalid if co-
owner/occupier is present and objects to search.
iv. Scope of consent: The search is limited to areas in which a
reasonable person would believe it extends.
g. "Terry Frisk"
i. Police must have reasonable articulable suspicion. Purpose is
solely for safety, not evidence collection.
ii. Scope limited to exterior of clothing, except that police can reach
directly into area of clothing if they have specific reliable
information that a weapon is concealed there.
iii. Special Rules for Automobiles:
(1) Police can "frisk" interior of car if reasonable believe that
weapon is present.
(2) Police can order both driver and any passengers out of the
car - even without suspicion that they are armed.
iv. "Plain Feel" Doctrine: If police reach inside clothing an
reasonably an immediately believe that an item is a weapon or
contraband, the item can be removed and used in a prosecution.
h. Exigent Circumstances
i. "Hot Pursuit" of a Felon
ii. Evanescent Evidence
iii. An Emergency
2. Special Warrantless Privacy Invasions
a. Inventories
i. Automobile Inventory. Requires that standardized departmental
policy exist and that it be followed. Allows all areas of the car to
 be searched.
ii. Personal belongings on the Arrestee.
b. Searches of Children in Public Schools are Allowed if:
i. There is a moderate chance of finding evidence of wrongdoing;
ii. The search method is reasonably related to the search objectives;
and
iii. The search is not particularly invasive in light of the age and sex
of the child and the nature of the charge.
c. Students can be subject to random drug testing.
d. Certain government employees can be subject to drug testing without
individualized suspicion.
F. WIRETAPPING AND EAVESDROPPING
1. With wiretapping, a search warrant is required specifying the persons to be
overheard and the length of time.
2. With eavesdropping, two issues are possibly at play:
a. The "Unreliable Ear": every person assumes the risk that the person
listening is an informer.
b. The "Uninvited Ear": every person assumes the risk that someone else
may overhear a conversation.
IV. CONFESSIONS
A. FOURTEENTH AMENDMENT "INVOLUNTARINESS" TEST: Applies when
police violate "due process" when when secure involuntary confessions from
Defendants.
1. Involuntariness is assessed on the basis of the totality of the circumstances.
Factors include the suspect's age, education, and experience with the system, and
manner of police interrogation.
2. Involuntariness requires some kind of government coercion.
B. SIXTH AMENDMENT RIGHT TO COUNSEL: Police violate the right to
"assistance of counsel" when they secure a confession from D under certain
circumstances.
1. Triggered only a critical stage in prosecution.
2. Triggered only if government agent deliberately elicits the statement
3. Caveat: the right is offense specific. Standard is the same as double jeopardy.
Two crimes are considered different if each requires proof of different elements.
4. Caveat: The D must expressly request the right to counsel.
5. If violation occurs, the confession barred from case-in-chief but can be used to
impeach D on cross-examination.
C. THE FIFTH AMENDMENT AND MIRANDA: Police violate a D's right not to "be
compelled to be a witness against himself" interpreted to mean a self-incriminating
statement, under certain circumstances.
1. The Miranda warnings:
a. Right to remain silent
b. Anything said can be used against you
c. Right to presence of counsel
d. If you cannot afford a lawyer, one will be appointed for you
2. The warnings do not have to be verbatim as long as the message is conveyed.
3. The warnings are required when we find two things:
a. Custody and
b. Interrogation
4. Custody: Custody occurs when the D's freedom of movement is limited in a
significant way. It is an objective test, based on police behaviors. It does
not cover voluntary encounters, traffic stops, or grand jury proceedings.
Therefore, there is no need for Miranda warnings, allowing use of any
incriminating statements secured in such situations.
5. Interrogation: Interrogation is express questioning or words or actions police
know or should reasonably know are likely to elicit an incriminating response
from the Defendant.
6. Spontaneous Utterances: Miranda does not apply when D offers a statement
that is not in response to interrogation.
7. Waiver of Miranda Rights
a. A suspect may waive Miranda warning, but the prosecution must prove,
based on the totality of the circumstances, that the waiver was:
i. knowing,
ii. voluntary, and
iii. intelligent
b. No waiver can be assumed when the suspect is silent or shrugs his
shoulders. However, if warnings are provided and suspect answers
questions, then waiver can be assumed.
c. Defendant need not be told of all subjects that will be covered in the
interrogation.
d. Police can fail to inform D that a third party has retained a lawyer for D.
8. Right to Terminate Interrogation
a. RULE: The D may terminate custodial interrogation at any time by
invoking either the right to remain silent or the right to counsel. The
invocation must be explicit and unambiguous.
b. If D invokes his right to remain silent, police must honor the request and
cease interrogation.
i. Police, however, can re-approach the D after a passage of time and
obtain a statement if the make Miranda warnings and get a
knowing, voluntary, and intelligent waiver from D.
c. If D invokes his right to counsel, the police must honor the request and
cease interrogation.
i. Police cannot thereafter re-approach the Defendant on their own.
ii. Police may only re-approach if:
(1) 14 days have passed after the D invoked the right to
counsel.
(2) If the D initiates the discussion about the case; or
(3) The D has his attorney present.
d. The Fifth Amendment right to counsel is not offense-specific. It bars
questioning as to all other suspected crimes.
9. Uses for Miranda-defective Statements
a. Impeachment on cross-examination
b. Physical fruit as opposed to a confession
i. Miranda only covers testimonial evidence.
c. Responses to questions based on public safety
d. For investigative leads.
V. PRETRIAL IDENTIFICATION
A. THE SIXTH AMENDMENT RIGHT TO COUNSEL
1. RULE: Once a "critical stage" in a prosecution is reached (indictment or
information), D has a right to the presence of an attorney at any "line up" or
"show up." Failure of police to comply deprives D of right to "assistance of
counsel."
2. With a line up the D stands in a line with other people.
3. A show up is one-on-one viewing of D by a witness.
4. An accused does not have a Sixth Amendment right to counsel at:
i. A photo array or
ii. Police extract physical evidence (i.e. a handwriting sample or blood
sample)
B. FOURTEENTH AMENDMENT RIGHT TO DUE PROCESS
1. D, faced with a "critical stage" can attack an identification as being so prejudicial
as to violate due process if the identification is:
i. Unnecessarily suggestive, and
ii. The suggestiveness creates a substantial likelihood of misidentification.
2. Even if identification is "unnecessarily suggestive" it will not be excluded if it is
reliable.
C. REMEDY
1. Even if there is a Sixth or Fourteenth Amendment violation, the prosecution can
use an in-court identification if it shows that there was an "independent source"
for the information based on factors such as:
i. Opportunity to observe the defendant or the act;
ii. The level of witness certainty
iii. The time lapse between the act and identification.
VI. PRETRIAL PROCEDURES
A. BAIL
1. Refusal to grant bail or the setting of excessive bail can be appealed immediately.
2. Preventative detention is constitutional and permissible, if procedural protections
such as a hearing are provided.
B. GRAND JURIES
1. Only the federal government must use grand juries. Many states do use grand
juries, but they are not required to to so under the Constitution. Many states
allow prosecutors to charge by information.
2. The exclusionary rule does not apply in the grand jury context; a grand jury
witness may be compelled to testify about illegally seized evidence.
3. Grand juries are conducted in secret. The accused has no right to appear and has
no right to have counsel present or to have witnesses testify.
4. Because the exclusionary rule does not apply, a witness can be compelled to
testify based on illegally obtained evidence.
VII. SIXTH AMENDMENT TRIAL RIGHTS
A. THE RIGHT TO AN UNBIASED JUDGE
1. Due process will be violated if it is shown that the judge has a financial interest
in the outcome or an actual prejudice toward the defendant.
B. JURY AND ITS COMPOSITION
1. A right to a jury trial exists when the possible sentence for an offense is over six
months. Also there is no right to a jury trial in juvenile proceedings.
2. There is no constitutional right to a jury of 12. The minimum number of jurors is
 6.
3. Non-unanimous jury verdicts
a. The Court has upheld convictions that were less than unanimous: 10-2, 9-
3, but would not likely uphold an 8-4 verdict.
b. Any 6-member jury must be unanimous.
4. Jury Selection
a. D has a right to have a jury selected from a representative cross-section of
the community. This pool of individuals is known as the venire.
b. To establish a violation, the D must show that the venire contained an
under-representation of a distinct and numerically significant group.
c. D does not have the right to proportional representation of all groups on
his particular petit jury (as opposed to the venire from which it is
drawn).
5. Limits on Peremptory Challenges: Gender and Race
a. It is unconstitutional for either the prosecution of the defense to exercise
its peremptory challenges to exclude jurors solely on account or race or
gender.
6. Right to Effective Assistance of Counsel
a. To show violation of this Sixth Amendment right, the defendant must
show:
i. Deficient performance (i.e. particular flaws you can point to, not
mere inexperience); and that the
ii. Deficient performance resulted in conviction (i.e. causation).
b. Such claims are usually denied.
VIII. GUILTY PLEAS AND PLEA BARGAINING
A. TAKING THE PLEA
1. A plea is a waiver of D's right to trial.
2. The Supreme Court uses contract theory for plea bargaining.
a. The terms of the bargain are to be revealed on the record and both D and
the government will be held to the deal.
3. A plea must be voluntary and intelligent. The judge must address defendant
personally on the record about:
a. The nature of the charge and the elements
b. The maximum penalty and any mandatory minimum; and
c. The judge has to tell D he has a right to plead not guilty and a guilty plea
results in a waiver of a jury trial.
B. WHEN A PLEA CAN BE ATTACKED
1. Involuntary and unintelligent
2. Court lacked jurisdiction
3. Ineffective of counsel claim
4. The government fails to uphold to its end of its bargain.
5. If the plea is deemed invalid for any of the above reasons, the remedy is for the
plea to be withdrawn and you have a new plea or you have a trial.
IX. THE DEATH PENALTY
A. KEY POINTS
1. Any death penalty statute that does not give D a chance to present mitigating
facts and circumstances, or that limits admissibility of such information is
unconstitutional.
2. There can be no automatic category for imposition of the death penalty.
 3. Only a jury, not a judge, may determine the aggravating factors that justify
imposition of the death penalty.
B. CATEGORICAL LIMITS
1. The death penalty cannot be imposed for the sexual assault of a child or an adult
woman not resulting in death.
2. A person under 18 at the time of capital crime cannot receive the death penalty.
3. Mentally retarded Ds cannot be executed.
4. Persons who are insane at the time of the proposed execution cannot be executed.
X. DOUBLE JEOPARDY
A. WHEN DOUBLE JEOPARDY ATTACHES
1. Jeopardy attaches in a jury trial when the jury is sworn.
2. Jeopardy attaches in a bench trial when the first witness is sworn.
3. Jeopardy does not attach in a civil proceeding.
B. EXCEPTIONS PERMITTING RETRIAL AFTER JEOPARDY HAS ATTACHED
1. Hung jury
2. Mistrial for manifest necessity (i.e. hospital emergency during trial)
3. If there has been a successful appeal. However, a retrial is not permitted if
reversal was based on insufficiency of the evidence.
i. Ex. A court of appeals reverses D's burglary conviction because the
evidence did not support guilt beyond a reasonable doubt. A retrial would
be permitted.
ii. Ex. If, however, if the court reversed, on the assumption that even if all
the evidence was taken as true, it would not suffice to prove all elements
of the offense, then a retrial would be barred.
C. WHAT IS THE "SAME OFFENSE"
1. Two crimes are not the same offense if each requires proof of an element that the
other does not.
i. One may be tried for (i) manslaughter and (ii) hit and run, because they
involve different elements.
D. GREATER, LESSER OFFENSES
1. Attachment of jeopardy for a greater offense bars retrial for lesser included
offenses. Ex. robbery conviction bars a prosecution of larceny.
2. Attachment of jeopardy for a lesser included offense bars retrial for a greater
offense.
3. Exception: A prosecution for murder is permitted if the victim dies after prior
attachment of jeopardy for battery.
E. SEPARATE SOVEREIGNS
1. Double jeopardy does not apply to trials by separate sovereigns.
2. Separate sovereigns can prosecute D for the same offense.
XI. FIFTH AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION
A. WHO MAY ASSERT THE PRIVILEGE?
1. Any natural person asked questions under oath is entitled to assert the privilege
in any criminal trial, civil trial, or hearing - if the answer might tend to be
incriminating.
2. The privilege does not apply to corporations.
3. One must assert the privilege, and not answer, or have it waived for purposes of
all subsequent proceedings.
B. SCOPE OF PRIVILEGE
1. The Fifth Amendment protects only testimonial evidence, not physical evidence.
 2. However, the government cannot compel one to take a lie detector test.
C. COMMENTS ON DEFENDANT'S SILENCE
1. It is unconstitutional for the prosecutor in a trial to comment on a D's failure to
testify.
2. A prosecutor may not comment on defendant's silence after being arrested an
invoking his Miranda right to remain silent.
3. At trial D may ask the court for a jury instruction that tells the jury they may
draw no adverse inference from his failure to testify.
D. GRANTS OF IMMUNITY
1. A witness may be compelled to answer an incriminating question if granted
immunity from prosecution.
2. The most common form of immunity is "use and derivative use" immunity. It
guarantees both that the witness's testimony and evidence secured by means of
the testimony will not be used against the witness.
3. However, witnesses may still be prosecuted if the government shows that the
evidence to be used against them was derived from a source independent of the
immunized testimony or before the grant of immunity.
4. A person has no privilege under the Fifth Amendment if the statute of limitations
on the crime has run.
5. By testifying, D waives the Fifth Amendment privilege for all relevant cross-
examination.